Avera et al. vs. Tool, McGarra & Toudee; Wilkerson vs. The State of Georgia. AVERA et al. vs. TooL, McGARRAH & TOUDEE. 1. On the only plea filed, that the fertilizer, for the purchase price of which suit was brought, was worthless, the evidence was conflicting; there was enough to sustain the verdict, and the presiding judge did not abuse his discretion in refusing to disturb it. 2. In order to maintain a suit for the price of fertilizers, it was not necessary for the plaintiffs to allege and prove that the fertilizer sold had been inspected, tagged and branded; and a motion for non-suit, on the ground of the want of such proof, was properly overruled. The want of inspection, tagging and branding is matter for plea, and the burden of proving it rests on the defendant. Code, §3758. 3. Where a jury were allowed by consent to disperse after finding a verdict, and the foreman was allowed to return it into court on the next morning, if, upon its return, it was found not to have been signed, there was no error in directing the foreman to sign it. The failure to sign it amounted at most to a mere informality, which was properly amended. 17 Ga., 361; Code, §3567; 24 Ga., 92; 14 Id., 18. Judgment affirmed. October 2, 1834. HALL. Justice. WILKERSON vs. THE STATE OF GEORGIA. [Jackson, C. J., not presiding, on account of providential cause.] It is error for the court to cause twelve jurors to be sworn upon their voire dire and examined together touching their competency, ordering such as disqualified themselves to stand aside, and putting upon the prisoner each of those pronounced competent, as his name was called. Each juror called should be disposed of and either accepted or rejected before another is presented to the accused; and more than one cannot be examined on their voire dire at one time. 65 Ga., 430, 432; 60 Id., 367; Code, §§4681, 4684. Judgment reversed. October 2, 1881. HALL, Justice, Wilson vs. Dunnegan; Elsinger, administrator, vs. Beytagh et al.; etc. WILSON VS. DUNNEGAN. 1. The only issue in this case was whether the deed relied on by the plaintiff in ejectment was given as a conveyance, or only as a security for money loaned; and there was sufficient evidence to authorize the finding of the jury on that issue. 2. The charge was a full, fair and impartial exposition of the law applicable to the issues made by the parties Judgment affirmed. September 9, 1884. BLANDFORD, Justice. ELSINGER, administrator, vs. BEYTAGH et al. 1. Where trover was brought by an administrator to recover a bond, a defendant in the suit was incompetent as a witness to testify that the plaintiff's intestate during her life had given the bond to such defendant. Code, §3854; 71 Ga., 66. 2. There was no abuse of discretion in granting a first new trial in this case. Judgment affirmed. December 19, 1884. BLANDFORD, Justice. Cox vs. MERCER & COMPANY. Where exceptions were filed to an award returned and entered on the minutes, on the general ground that it was the result of accident or mistake on the part of the arbitrators, and the attempted specifications under this ground were vague and loose, and the evidence before the arbitrators was not given, and no full data were given from which the court could accurately determine whether such mistakes, in fact, existed, a demurrer to such exceptions was properly sustained. 38 Ga., 135; 39 Id., 678; 41 Id., 370; 63 Id., 752; 64 Id., 582; 44 Id., 585; 48 Id., 421. Judgment affirmed. October 2, 1884. HALL, Justice. Terry vs. Bank of Americus; Hill vs. The State of Georgin; etc. TERRY vs. BANK OF AMERICUS. [Jackson, C J., did not preside, on account of providential cause ] The evidence being conflicting as to whether the note sued on in this case was given in payment of another note, or was a mere memorandum and without consideration, and the jury having found for the plaintiff, and the presiding judge having refused a new trial, this court will not interfere. Code, §2740; 9 Ga., 701. Judgment affirmed. October 2, 1884. HALL, Justice. HILL vs. THE STATE OF GEORGIA. 1. The verdict is supported by the evidence. 2. Newly discovered testimony, the object of which is to impeach the state's witnesses, cannot work a new trial after one verdict, much less after two. Judgment affirmed. September 9, 184. JACKSON, Chief Justice. CARSON VS. SHELDON. [Hall, J., did not preside in this case.] Where a bill sought to restrain the enforcement of a judgment at law, and open it for defences which could have been set up at law, and it appeared that the suit was on a promissory note, and that no plea or defence of any sort was filed; that the complaint was that the defendant in the suit was prevented from defending by some efforts at compromise, although he was present and made no defence; and where all fraud was sworn off by the answer and depositions, and the equity of the bill, if any, was thus fully met, the case was one of disputed facts, and the discretion of the chancellor in refusing an injunction will not be controlled. Judgment affirmed. October 21, 1884. JACKSON, Chief Justice. Sulter vs. Brooks et al.; Hickman, executor, vs. Hickman et al. SULTER vs. BROOKS et al. 74 401 Case 1 1. Where five garnishees, under proceedings against the same defend- 114 626 ant, each answered that he owed the defendant nothing, and each prayed to be allowed five dollars as expenses of making the answer, and a joint judgment was rendered in their favor against the plaintiff for twenty-five dollars, and he thereupon excepted, the writ of error will not be dismissed on the ground that the case of each garnishee was separate, and should have been brought up by a separate writ of error. 2. If a garnishee truly answers that he owes the defendant nothing, and if he had incurred any expenses in making such answer, the amount so incurred shall be taxed in the bill of costs under the approval of the court, and shall be paid by the party cast in the suit, as other costs are now paid. A judgment is necessary to approve it; and where, in such a case, the expenses of answering were fully proved, and no contesting testimony was offered, a judgment for the amount so proved was proper. 53 Ga., 28; Code, §3549. Judgment affirmed. January 6, 1885. JACKSON, Chief Justice. HICKMAN, executor, vs. HICKMAN et al. Where an executor is sued as such, and is called upon to defend solely the title of the estate, he may appeal from the court of ordinary to the superior court without paying costs and giving security; but in no other case can he do so. Therefore, where an executor was cited to appear and settle his accounts and pay over to the legatees the amounts to which they were entitled, and from the judgment rendered, the executor desired to take an appeal, he · could not do so without paying costs and giving security; and an appeal taken without such requisites was properly dismissed. Code, §§3622, 3624; 45 Ga., 480; 60 Id., 326. (a.) It appearing that this writ of error was prosecuted for delay only, ten per cent damages are awarded against the plaintiff in error. Judgment affirmed. November 11, 1884. HALL, Justice. V 74-26 74a 402 107 728 Lowe, executor, vs. Wallace; Galliher vs. Smith et al.; etc. LowE, executor, vs. WALLACE. Where, on the hearing of a certiorari, it appeared from the record that the bond given by the applicant for the writ was never approved by any one, the certiorari was properly dismissed. Hester vs. Keller, (present term). Judgment affirmed. January 21, 1855. BLANDFORD, Justice. GALLIHER vs. SMITH et al. This court never interferes with the first grant of a new trial, where the evidence is conflicting; and the verdict in this case being decidedly and strongly against the weight of the evidence, a new trial was properly granted. Judgment affirmed. December 19, 1884. HALL, Justice. JOHNAMSEN vs. TARVER, CASHIN & COMPANY. Where the defendants in a bill in equity demurred thereto, and also filed an answer in the nature of a cross-bill against complainant, if the demurrer was sustained and the bill dismissed, it carried the cross-bill with it; and it was error in the court to dismiss the bill but retain the cross-bill for trial. Judgment reversed. December 2, 1884. BLANDFORD, Justice. ADCOCK et al. vs. WATTS et al. There was no abuse of discretion in refusing to grant an injunction in this case, the facts being in dispute. Judgment affirmed. January 21, 1885. HALL, Justice. |